US Military Medical Ethics in the War on Terror George J Annas,1 S Crosby1,2
Total Page:16
File Type:pdf, Size:1020Kb
Invited review J R Army Med Corps: first published as 10.1136/jramc-2018-001062 on 24 January 2019. Downloaded from US military medical ethics in the War on Terror George J Annas,1 S Crosby1,2 1Center for Health Law, Ethics ABSTRact Key messages and Human Rights, Boston Military medical ethics has been challenged by the University School of Public post-11 September 2001 ’War on Terror’. Two recurrent Health, Boston, Massachusetts, The post-9/11 "war on terror" has deformed questions are whether military physicians are officers first ► USA military medical ethics in the US. 2Department of Medicine, or physicians first, and whether military physicians need a The US military has explicitly rejected the Boston University School separate code of ethics. In this article, we focus on how ► WMA's ethical rules regarding hunger strikers of Medicine, Boston, the War on Terror has affected the way we have addressed Massachusetts, USA in detention. these questions since 2001. Two examples frame this The US should re-establish medical ethics rules discussion: the use of military physicians to force-feed ► Correspondence to that explicitly permit military physicians to put hunger strikers held in Guantanamo Bay prison camp, Dr George J Annas, Center for the interests of their patients first. Health Law, Ethics and Human and the uncertain fate of the Department of Defense’s Rights, Boston University School report on ’Ethical Guidelines and Practices for US Military of Public Health, Boston, MA 02118, USA; annasgj@ bu. edu Medical Professionals’. vaccines without their consent in the event of a 4 Received 6 September 2018 chemical or biological attack. But mostly mili- Revised 11 December 2018 tary medical ethics became the subject of intense Secretary of Defense Jim Mattis wrote to all Accepted 12 December 2018 discussion only after 9/11. The baseline for military Published Online First members of the Department of Defense (DoD) in medical ethics was set by the coincidental publica- 24 January 2019 2017 with the subject line, ‘Ethical Standards for All 1 tion by the US military of a 2-volume set, Military Hands’. The core of his message: Medical Ethics, in 2003, which remains the most I expect every member of the Department to play authoritative US publication on this subject.5 the ethical midfield. I need you to be aggressive and In this article we focus on two specific topics show initiative without running the ethical sidelines, to illuminate the ‘physician first problem’, and where even one misstep will have you out of bounds. arguments for and against developing a separate copyright. I want our focus to be on the essence of ethical con- medical ethics code for military physicians. The duct: doing what is right at all times, regardless of first example is the most publicly discussed mili- the circumstances or whether anyone is watching. tary medical ethics controversy of the past 15 years, (Emphasis added) the use of military physicians to force-feed hunger 6 The Secretary’s admonishment was in sharp strikers in Guantanamo Bay. The second is one of contrast to that of General Michael Hayden, former the least publicly discussed ethics reports (whose future is still uncertain), the Defense Health Board’s director of the National Security Agency, and the http://militaryhealth.bmj.com/ Central Intelligence Agency, who told his agents 2015 report on ‘Ethical Guidelines and Practices for 7 after the 9/11 attacks: I want you to play the entire US Military Medical Professionals’. [ethics] field to the limits, ‘I want to see chalk dust on [your] cleats.’2 Mattis also expressed the need PRISON HUNGER STRIKES AND MEDICAL for training in ethical dilemma resolution, as well as ETHICS knowing what it means to live by ‘an ethical code’, The War on Terror incited a vigorous response and follow the military’s Oath of Office. The Mattis that could not be held in check by existing ethics letter treats all military and civilian personnel in codes. After 9/11, there were scandals at Abu the DoD the same, and holds all of them to the Ghraib, abuses at Bagram Air Base in Afghanistan same ethics standard. His message has been widely and reports that psychologists at Guantanamo praised. Nevertheless, for physicians (and other Bay prison were participating in interrogations. In on September 27, 2021 by guest. Protected healthcare professionals) serving in the US military, response, the Assistant Secretary of Defense for it begs at least two persistent questions: (1) Are Health Affairs, William Winkenwerder, decided physicians in the US military physicians first or offi- to consolidate all ‘principles and procedures for cers first? and (2) Should military medical ethics be US military medical personnel when working spelled out in a separate code? with detainees under control of US armed forces.’ The question of whether the US military itself When the principles were announced, in 2006, needs new standards of ethics has been raised peri- the most controversial proved to be the role of © Author(s) (or their military physicians in force-feeding competent employer(s)) 2019. Re-use odically since World War II. For example, in 1955 permitted under CC BY-NC. No President Dwight D Eisenhower issued a new ‘Code hunger strikers at Guantanamo. The new Instruc- commercial re-use. See rights of Conduct for Members of the Armed Forces of the tion was entitled ‘Medical Program Support and permissions. Published United States’, in reaction to the ‘brainwashing’ for Detainee Operations’ and the hunger strike by BMJ. of American prisoners of war during the Korean section provided that, 3 To cite: Annas GJ, Crosby S. conflict. One of the few pre-9/11 medical ethics In the case of a hunger strike, attempted suicide, or J R Army Med Corps disputes involved the plan to provide US troops other attempted serious self-harm, medical treatment 2019;165:303–306. in the first Gulf War with experimental drugs and or intervention may be directed without the consent Annas GJ, Crosby S. J R Army Med Corps 2019;165:303–306. doi:10.1136/jramc-2018-001062 303 Invited review J R Army Med Corps: first published as 10.1136/jramc-2018-001062 on 24 January 2019. Downloaded from of the detainee to prevent death or serious harm. Such action must at Guantanamo for 12 years, was never charged with a crime be based on a medical determination that immediate treatment or and was cleared for release in 2009. Judge Kessler initially intervention is necessary to prevent death or serious harm, and, ruled that all forced cell extractions and force-feeding must in addition, must be approved by the commanding officer of the 8 end, the first time such an order had been issued in the history detention facility… (Section 4.7.1, emphasis added) of force-feeding at Guantanamo. The case, however, was This provision is confusing at best. Competent hunger strikers complex: Dhiab was not opposed to voluntary enteral feeding are engaged in a protest, they are neither suicidal nor mentally at the hospital, only to being force-fed in a painful manner in ill. Lumping them into these latter two categories seems a restraint chair. The DoD remarkably refused this request. designed to justify some sort of forced treatment, here forced Judge Kessler described the DoD’s refusal as presenting her feeding. But this directly contravenes the World Medical Asso- with an anguishing Hobson’s choice: to reissue another ciation’s (WMA) Declaration of Malta which prohibits physi- temporary restraining order against force-feeding ‘despite the cians from force-feeding competent hunger strikers.9 This very real probability that Mr Dhiab will die…or allow medical matters because to the best of our knowledge, this is the only actions to keep Mr Dhiab alive, but at the possible cost of great time US military medical ethics standards have been adopted pain and suffering.’ She decided to permit the physicians at that explicitly permit physicians in the military to act in a Guantanamo to resume force-feeding because she did not manner that contravenes applicable worldwide medical ethics believe she had the authority to prohibit it.13 An appeals court standards.10 later ruled that she did in fact have oversight authority.14 In a 7 June 2006 press conference on the new Instruction, Dhiab’s case illustrates many of the elements that are Winkenwerder acknowledged this conflict, but sought to wrong with the Guantanamo force-feeding regime, and why it downplay its importance, saying: ‘We have a policy that is to conflicts with basic medical ethics: (1) the prisoner is compe- preserve life. That policy is an ethical policy. It’s in the best tent and should have the right to refuse treatment; (2) forced interests of the individual who is a hunger striker, for his life to feeding can be ordered by a non-medical person (the base be preserved…’ On medical ethics specifically, Winkenwerder commander) usually long before the prisoner is in any medical said: danger from his hunger strike; (3) the prisoner is brought to the restraint chair violently, by forced cell extraction; (4) naso- We view what we are doing as largely consistent with [the Malta] gastric feeding takes place in up to 8-point restraints (feet, declaration… Malta permits feeding when the hunger striker has lapsed into a coma and is impaired and unable to make a decision. wrists, chest, shoulders and sometimes head) in a ‘restraint It’s our view that we’re basically along the same ethical tenets, same chair’; and (5) this method of force-feeding violates Malta and ethical line of thinking, we just don’t want to have someone get to Common Article 3 of the Geneva Conventions which prohibits 15 death or near death before we seek to save them.